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Homicide Approach for the Bar Exam

1. Start with common-law murder: Start by classifying what kind of killing this was under common-law, from the most
severe common-law category of homicide (murder) to the lowest (criminal negligence).
2. To fit the killing as a common-law murder, try to find malice aforethought. Remember malice aforethought exists if
the D has (a) intent to kill; (b) intent to inflict great bodily injury; (c) reckless disregard for great risk to human life; OR (d)
intent to commit a dangerous felony (felony-murder).
a. If all you have is reckless disregard here, then think about this killing as possibly not common-law murder but
rather criminal negligence or involuntary manslaughter.
3. If there was no common-law murder (meaning no killing with malice aforethought occurred), then ask if adequate
provocation preceded and led to the murder?
a. If so, then there is voluntary manslaughter. (Remember voluntary manslaughter is an intentional killing
different from murder by the existence of adequate provocation or imperfect self-defense.)
4. If there was no malice aforethought and no adequate provocation, you likely have involuntary manslaughter. But just
in case, decide whether you have involuntary manslaughter from the facts.
a. Remember involuntary manslaughter occurs if death is caused (a) by criminal negligence; OR (b) while
committing a misdemeanor; OR (c) while committing a felony but the killing doesnt qualify as felony-murder.
5. Once youve categorized the killing under common-law, now go to categorizing the killing in terms of 1st or 2nd
degree murder if you need to. ****You wont have to do this for involuntary manslaughter because its not considered
murder. But you will need to do this for common-law murder and voluntary manslaughter.
a. Remember 1st degree murder is one committed with premeditation and deliberation. All other homicide is
2nd murder.
6. Once you have determined 1st or 2nd degree murder or involuntary manslaughter, go to available defenses. The
following is a list of typical defenses to look for:
a. Self-Defense (deadly force)
b. Self-Defense (non-deadly force)
c. Aggressors Use of Self-defense:
d. Defense of others
e. Mistake of fact (1st degree murder only)
f. Insanity (4 tests):
i. MNaghten
ii. Irresistible Impulse
iii. Durham/Product Test
iv. MPC / ALI Test
g. Voluntary Intoxication (1st degree murder only)
h. Involuntary Intoxication
For felony-murder, start here FIRST instead of the steps above.
1. If theres a killing associated with felony activity, analyze whether theres 1st or 2nd degree felony-murder by looking at
whether the felony was an inherently dangerous activity (i.e. Burglary, Arson, Rape, Robbery, Kidnapping, Mayhem).
a. If the felony activity was inherently dangerous, you have 1st degree felony-murder. If not, then you have 2nd
degree felony-murder.
2. Then apply defenses to felony-murder:
a. No Guilt of Underlying Felony
b. Felony was not independent of the killing
c. Foreseeability of the death
d. During the commission of the felony
e. Red-line rule (D is not liable for felony-murder when a co-felon is killed as a result of resistance from the
felony victim or police.)
f. Agency theory
3. If the defenses eliminate felony-murder, then go to the above steps for homicide.
Note: This approach was prepared by Washburn Bar Services. It should be used to help you understand the concept that it represents. It is, however, not a substitute for
materials that a commercial bar review would otherwise distribute. Rather this serves more appropriately as a supplement to commercial bar review materials.